> The patent system is so broken that any bozo with money to spend can buy a portfolio of patents, do nothing with them, then sue a company that actually is creating value.

[Bill Snyder](http://www.infoworld.com/d/the-industry-standard/tech-jobs-vaporized-patent-war-goes-nuclear-170137)

Sharing and the Knowledge Economy

One of the problems for artists, writers, coders, and producers of, well, all the stuff we lump under the “knowledge economy” is what to do when you want to share. By default, as I understand it, materials are copyrighted to their maker. That means you have to be active in changing the status of your materials to something others can use without seeking your permission.

Now, why would you want to do that? There are a variety of reasons, some of them principled and some of them practical.

First, the principled reasons are:

1. *Sharing is good.* In some ways this is both a principled and a practical stance. For knowledge to be, well, knowledge, it has to be shared. Otherwise it’s just ideas in your head. Maybe they came from those voices you sometimes hear inside your head, but chances are the ideas actually came from your encounters in the world: things you heard, things you saw, thing you read. That means your ideas are based on other people’s ideas, and, surprise, they shared them with you and now you get to share, too.
2. *Sharing is fun.* Remember when you were a kid and you had something another kid didn’t have and they just really, really, really wanted to play with it. At first it kinda hurt to have to share, but the look of pure bliss that came across that other kid’s face, and how thankful they were for the chance to play with whatever it is you shared made it even better. You were a hero. And, by the way, the thing you shared: do you even have it anymore? No? I thought not. See? You don’t have the thing anymore, but you still have the memory of having shared.

Another reason for me to share, that may or not be of the nature of a “principle” is that I do so because I am a professor at a public university. I feel that I am paid for. (Not a lot, but still.) More importantly, I am paid for by a lot of people who really don’t have much themselves. It’s my duty to share.

And now the practical reasons:

1. *Sharing works.* It builds your reputation. People want your stuff because it’s good, it’s smart, it helps them in some way. And not only are you smart, but you are also nice. Whoa, you are in good stead twice over.
2. *Sharing makes less work for you.* I admit it: I’m lazy. The last thing I want to do is keep answering e-mails from various teachers, students, and colleagues about use of some photograph, document, or form I have created. I put them on [Flickr][] and [Scribd][] with Creative Commons licenses for a reason: I don’t want to have to e-mail things or make copies and mail, and I don’t want to have to respond to e-mails or telephone calls or write stupid legal-sounding notes giving someone permission to use something.

Now, before I get to the practical side of how you, too, can share your stuff. I should note that there is a down side to sharing. As I noted above, as a university professor I am paid for. One of the things for which I am paid is knowledge creation. But universities are very particular about how they measure creativity: they rely upon a somewhat creaky, but very reliable system that gauges my productivity in terms of very particular kinds of items — books, articles, etc. — and very particular kinds of estimation of my value — is another university offering me a job? for example — or how widely, or often, am I cited?

I share most of my materials under the Creative Commons “Attribution” license, but that really depends upon the users of my materials crediting me in some fashion. In making less work for myself, I have made some work for them, and so far I have found that that bit of work is the most likely to fall through the cracks. For now, I don’t mind. The last people I am going to complain about are my fellow academics and other teachers: I know how little time they have and the increasingly onerous paperwork regimes under which we all work. Added to that, is that the university itself, like its peers, does not really have the facilities to “credit” my productivity in this regard. But if such things do matter to you, than my version of “share it if you got it” might not be the best idea for you.

I will leave the decision about **what to share** to you. It’s a hard decision to make. And, I confess, the difficulty is not really made any easier by the number of options are available. **How you share** is very important. Why? Here’s something that may catch you off guard: you can’t simply declare something to be in the public domain. *What?!* That’s right. The truth is that *public domain* is not a globally-recognized category. There are some countries where public domain materials are either not recognized as such, and thus make it difficult for people to use your materials. There are also some instances in our own country where use of public domain materials makes their use difficult. (Search for yourself, if you like.)

So, then, to share you have to find a form of copyright that is as “open” (or copyleft) as you wish. Most artists and writers I know are using one of the [Creative Commons][cc] licenses. Most coders I know tend to use one of the many code licenses available: GPL, “BSD-style,” Apache, etc. (For more on these licenses, see [Shlomi Fish’s write-up][fish] — link is to a Scribd PDF that I uploaded.)

How restrictive a license you choose is up to you, but here’s my advice: follow Fish’s suggestion and choose as permissive and open a license as you possibly can. In my own case, everything on this website is licensed as [Attribution-Noncommercial][bync]. I don’t find it necessary to mandate that others share like me, but I do want renumeration should someone else make some money using my work. (I have a child to raise, a home to pay for, and a truck I would like to pay off.)

My photography is under a more restrictive “no derivatives” license because a number of my photographs are from my documentary work, and I feel I owe the people with whom I work the courtesy of making sure their images are used in a way they would find appropriate and if there is money to be made, that I can make arrangements to see them paid. (Most photographers make money off their images of other people: I don’t.)

[Flickr]: http://flickr.com/johnlaudun
[Scribd]: http://scribd.com/johnlaudun
[cc]: http://creativecommons.org/
[fish]: http://www.scribd.com/doc/34997645
[bync]: http://creativecommons.org/licenses/by-nc/3.0/

Alternative IP Regimes

Part of what I am examining in the boat book, which is still tentatively titled Genius Loci, is alternative intellectual property regimes than the ones that dominate the headlines these days. (Please note that the contents of this website are in fact “copyrighted” under a Creative Commons Attribution-Noncommercial license.) In turns out that others are working in very similar territories … and those others are law professors: two law profs from the University of Virginia law school have just published a paper on “Intellectual Property Norms in Stand-Up Comedy”. Here’s an excerpt from the abstract:

In this paper, which will appear as a chapter of a forthcoming book from the Univ. of Chicago Press, “The Making and Unmaking of Intellectual Property,” we analyze how stand-up comedians protect their jokes using a system of social norms. Intellectual property law has never protected comedians effectively against theft. Initially, jokes were virtually in the public domain, and comedians invested little in creating new ones. In the last half century, however, comedians have developed a system of IP norms. This system serves as a stand-in for formal law. It regulates issues such as authorship, ownership, transfer of rights, exceptions to informal ownership claims and the imposition of sanctions on norms violators. Under the norms system, the level of investment in original material has increased substantially. We detail these norms, which often diverge from copyright law’s defaults. Our description is based on interviews with comedians, snippets of which we include throughout the paper.

The paper is available for download from SSRN.

(Humanists: please note that the abstract has its own URL: http://ssrn.com/abstract=1635023. We’ve got to get with the program!)

A Darkside to the iPad

There is an unfortunate trend emerging in the digital age that I have not seen anyone really address: the traditional role of the retailer as a middle agent with some sway over pricing of products appears to be eroding when it comes to digital media. In both the case of MP3s with Apple and ebooks with Amazon, the early successful entrants were able to dictate terms to the content industry. In both cases, 99-cent downloads and 9.99 ebooks allowed the two retailers to build a market. Of course, they also took advantage of the fact that in selling media content at such prices they were also able to sell hardware which increased their ability to capture consumers to their platform. (Sigh. Everybody wants to be a platform these days. Ten years ago, it was portals. Now it’s platforms.)

The content industries largely went along because no one else was really focusing on the big picture of building an economically-viable market and the much larger threat was that with no viable marketplace, everything would go through the black market.

An interesting part of the history here is that Apple was historically a hardware company that had taken on retail as a way to sell hardware. What began as a simple MP3 store has now expanded into a business that has only one peer: Amazon.com. Amazon started as a retail company that, despairing of anyone offering decent hardware for the ebook revolution that was inevitable (everyone had been talking about it for a decade), found itself needing to build hardware. I don’t think Amazon really cares that much about the hardware in terms of its overall revenues or profit but what it does care about is the lock-in the hardware achieves, enabling Amazon to offer DRMed EPUB files.

This play, of course, came right out of Apple’s playbook.

As the game, as it were, unfolded, Apple and Amazon thwarted each other. Amazon’s entry into the music download business gave the entertainment industry the chance it wanted to re-negotiate terms with Apple and the same events ensued, albeit with the tables turned, in the weeks leading up to and following the introduction of the iPad.

In both cases, what happened was not a return to the long established vendor-retailer convention whereby a vendor sells a product for a given price to the retailer and the retailer is free to set their own price, determining their own profits based on how much they markup an item and how many units they hope to sell. E.g., a book publisher determines that the price of a given book to any and all book stores will be $6 and then Bookstore A is free to sell the book at $8 in hopes of selling a lot and Bookstore B can choose to sell the book for $12 in hopes of attracting a smaller, but more discerning and committed clientele. Margin and volume.

The new era seems to be all about the so-called **agency model** wherein retailers are simply agents for content producers who determine the ultimate price of the product to the consumer. All the retailer does is negotiate the percentage of that price they get to put into their pocket.

This is an absurd position to put yourself in if your are a retailer, and I can only imagine that if you are Apple, you don’t care because you are mostly focused on selling hardware. If you’re Amazon, you care, but you are forced into this new situation because of Apple. If you are Amazon, and if you are a consumer, then you can only hope that things will eventually return to normal. (If you are Amazon, then you have to realize that you are being served a dish of crow for being such a jerk in the first place.)

If authors, and other content producers, think this new model is going to guarantee them a larger share of the profits, because there is going to be more profit, then I can only say that we can hope but history reveals that this is rarely the case.

Mostly I worry that this will lead to a stagnation in the market place at precisely the moment that we could use more experimentation. The idea that content producers engage the marketplace directly is a folly that they contrive out of greed but publishers and film and music producers have revealed that they really aren’t the place where innovation happens. If this new infrastructure put artists directly in contact with audiences, I might find it more interesting, but middle men remain, and there is no other set of middle men now to keep them in check.

A Patent for Patent Trolling

Like patent trolls themselves, someone has not only come up with an idea but patented it. In this case, however, the idea is patent trolling, and so, given the USPTO’s history so far, Clive Menesez could soon be in a position to claim that he holds a patent on patent trolling and all patent trolls would have to license their method from him.

Oh, irony, how sweet thou are.

[Link to patent onUSPTO website.](http://appft1.uspto.gov/netacgi/nph-Parser?Sect1=PTO1&Sect2=HITOFF&d=PG01&p=1&u=/netahtml/PTO/srchnum.html&r=1&f=G&l=50&s1=%2220080270152%22.PGNR.&OS=DN/20080270152&RS=DN/20080270152)